LE BARRISTER : A Montreal Criminal Lawyer's Blog

Is Shoplifting on the Rise?

2009-12-04T22:41:00.007-05:00

A recent CBC documentary on " The Secret World of Shoplifting" sheds a lot of light on what appears to be a rise in retail theft. Particularly interesting from a criminal defence lawyer's point of view is the insight on the techniques and technology employed by retailers and shoplifters.

"The Economist" magazine has also published an article on Shoplifting statistics worldwide. It appears Canada ranks 8th worldwide for retail losses due to shoplifting. According to the "Global Retail Theft Barometer”, shoplifting is in on the rise, particularly in America and Europe. The hottest stolen items? Designer clothes and fashion accessories, with car and home-improvement products being second. As far as food items are concerned, luxury cooked meat is the most prized item for shoplifters in Europe... Ain't that a slice!

La Passe du Passeport - Faking Residency for Citizenship

2009-10-04T22:06:00.006-04:00

Un reportage récent sur l’émission Enquête de Radio Canada révèle une pratique troublante employée par certains immigrants arabes désirant le passeport Canadien. La fraude de l’immigration, qui consiste en l'éspèce de contourner la loi pour recevoir la citoyenneté Canadienne. Pour en savoir plus lisez l'article de radio-canada ou visionner l'émission.

Un sujet semblable fut abordé dans une de mes anciennes entrées de blogue (anglais).

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A recent report on the french Radio Canada television chanel has revealed a troubling practice employed by certain arab immigrants seeking a Canadian passport. Immigration fraud, which in the present case consists of faking residency in order to meet the requirements for a obtaining citizenship. To read more on the subject you may the read the following cbc article with links to video and other external links.

A similar topic was treated in one of my past blogue entries.

Shoplifting : Who says crime doesn't pay?

2009-02-05T21:06:00.007-05:00

"My teenager got caught shoplifting and was not charged by the police. 5 months after the fact I get a letter from a lawyer saying I owe the store $1000.00. Can they do that? What should I do?"

This is a standard procedure followed mostly by large retailers. Essentially what you have received is a letter of notice requesting that you pay the store for the damages incurred in the process of arresting your son. This according to retailers allows them to absorb some of their security expenses.

I personally find this way of proceeding abusive in many circumstances. These standard letters often mislead the public into believing that if the requested sum is not paid, criminal charges may be laid. In addition some of these claims are grossly disproportionate to the actual damages the store incurred. A 350 $ claim following an incident of a stolen chocolate bar is not unheard of.

Many individuals are not as fortunate as your son and have to answer both to criminal charges as well as the subsequent letter from the retailer.

In such cases, if the individual believes to be innocent, then paying this claim can be considered an admission of guilt and I would therefore advise against it. Even if ultimately acquitted of the charges, you will not be reimbursed for paying the retailer’s claim. On the other hand, should a person who already paid the claim decide to plead guilty to the criminal charges of theft, they may nevertheless have to pay an additional court fine.

As these letters have not been deemed illegal as of yet, I cannot as a lawyer guarantee that you will not be sued in a civil court should you decide not to pay. Based on my experience however, I can tell you that it is highly unlikely.

The main reason being that is simply not worth their while, as it is more costly for the company to send a lawyer to act against you in court than the claim itself. Don’t forget that these large retailers send hundreds of such letters a month. If only 20% percent result in payment, that nevertheless covers a considerable amount of their security expenses.

In addition, I am not aware of the circumstances of the alleged theft. But if the store recovered their merchandise and nothing was damaged, 1000$ strikes me as a grossly exaggerated claim.

There are very few reported cases in such maters. Generally these are almost exclusively presented before small claims courts. I have only heard of one case that goes back to 1997, in which Zellers, claiming 540$ in damages was finally only awarded 215$ by the judge.

So to answer your questions: Can they do that? Unfortunately they can. Should you pay? Well, I hope my response helps you decide.

Criminal Proceedings and the Legal Consequences on Foreign Nationals and Permanent Residents

2008-11-23T00:31:00.011-05:00

Questions pertaining to immigration law often arise in a criminal lawyers practice, especially in multi-ethnic cities such as Montreal. The most important piece of legislation that governs this matter is Canada’s Immigration and Refugee Protection Act.

The first question one must ask is in which category does the individual fall into:

A Foreign National is defined as a person who is not a Canadian citizen or a permanent resident, and includes a stateless person. A simple way of determining this is by looking at the person’s social insurance number. Numbers beginning with 2 indicate a permanent resident, and those beginning with 9 indicate a foreign national.

A Permanent Resident is defined as a person who has acquired permanent resident status and has not subsequently lost that status under section 46. This is generally easy to determine, as permanent residents usually knows whether they hold this status and possesses a card identifying them as so.

Types of Convictions

Serious Criminality is defined as an offence punishable by a maximum imprisonment of 10 years or more. This also covers offences committed outside of Canada that if committed in Canada would fall under this category. As an example, a person convicted of sexual assault with a weapon that receives a 4 year sentence would fall under this category, as this offence is punishable by a maximum term of 14 years imprisonment.

Criminality is defined as one indictable offence OR two offences under any Act of Parliament not arising out of a single occurrence, most commonly manifested as purely summary offences(petty crimes) As an example, one assault punishable by indictable offence or two different incidents of shoplifting (summary offences).

Hybrid offences, which are punishable by way of indictment or summary conviction, are deemed indictable offences under the IRPA, even if the individual was prosecuted by summary conviction.

Note that 810 peace bonds and absolute or conditional discharges are not reported under the IRPA and will not fall in any of the two categories.

The Effect of the Convictions

Foreign National

A foreign national has the most precarious status in Canada following a conviction. Should a foreign national commit offences of Criminality or Serious Criminality, a report on inadmissibility is made which may lead to a removal order. The decision that is rendered cannot be appealed.

Permanent Resident

A permanent resident is only subject to a removal order if convicted of a crime of Serious Criminality. There is no right of appeal unless the individual was sentenced to a term of imprisonment of less than 2 years.

Applying for Citizenship

In order to apply for citizenship, the general rule is that the applicant must have resided in Canada for a total of 3 years during the 4 years preceding the day before the application is submitted.

What doesn’t count in the calculation of the duration of residence are the following:

1) Probation orders, including the probationary period in a conditional discharge
2) Parole ( release from prison)
3) Detention time in a correctional facility.
4) Period of time in which a person is charged with an indictable offence (pending case) or an offence under section 29(2) or (3) of the Citizenship Act.

This also means, that applicants have to wait until they are no longer subject to one of those categories before undertaking the oath of citizenship.

Note that an 810 peace bond or an absolute discharge is not an obstacle to citizenship application.

Putting Reason in Reasonable Bail

2008-08-13T17:31:00.033-04:00

R v. Peter Anoussis

A recent Bail Hearing decision of the Court of Quebec may substantially affect common practices with respect to bail. In R v. Peter Anoussis , the crown had requested a money deposit of $500 as a condition of release. An amount possibly too onerous for the defendant , Judge Patrick Healy invited the crown to justify the demand.

Judge Healy warned that the practice of requiring money deposits for Bail should be used with caution as it may lead to unfortunate inequity with respect to disadvantaged defendants. In addition, he reminded defence counsel that it is their duty to demand that bail conditions be justified.

From a defence lawyer's perspective, the sad reality is that many defendants will prefer accepting conditions as proposed by the crown on their arraignment. The alternative is refusing the conditions and spending another day in jail to await bail hearing, where more reasonable conditions may be sought. One more night in detention is definitely unpleasant, but blindly accepting unreasonable conditions in order to be released immediately is by far a greater punishment in the long run. Once accepted, these conditions may be difficult to change and could be maintained for a lengthy period of time.

In my opinion this new decision is likely to facilitate the negociation process between crown and defence counsel for more equitable conditions of release and will serve as an important wake up call ; reminding judges and attorneys that Bail must be reasonable.

I am leaving the country...can I use your address?

2008-08-04T18:14:00.008-04:00

' A friend of mine that is leaving Canada for a couple of years has asked me if she could use my address in order to receive her mail. Could I get in trouble for this ?'

This interesting question was recently raised by a client of mine. My immediate reflex was to ask her whether she knew why her friend was making such a request . She informed me that she had asked the question and that her friend's reply was simply: for the convenience of receiving some of my mail in Canada.

To my client, this request initially seemed as a small favor. Receiving mail however, naturally implies receiving mail from government agencies, and that's where things can get ugly!

So hypothetically, why would say, a 65 year old Canadian citizen leaving Canada for an extended period of time wish to retain a domicile in Quebec?

Well, There could be several reasons.

Taxes

In the given example, if the person is receiving an old age pension, they could be trying to avoid the non-resident tax which is at a rate of 25%

Social Assistance

This person may also be receiving social assistance which necessarily requires the person to be a resident in the province of Quebec.

Health Insurance

Given Canada's publicly funded medicare system, a person may wish to retain access to these services while abroad. A non-resident's health care card would eventually expire and cannot be renewed unless the person has regained resident status in Canada.

So, what kind of trouble could I get in?

In the attempt to avoid the non-resident tax, you could be charged under section 239 of Income Tax Act for having participated in making a false statement. This is a crime punishable by summary conviction and one could be sentenced to a fine or even imprisonment.

By assisting the person to continue receiving social assistance cheques at your mailing address you could be charged by summary proceeding under section 39(c) of the Social Aid Act and could be liable to a fine not exceeding 200$, imprisonment, or both.

And finally, as far as health care is concerned, by participating in giving false information to the board under the Health Insurance Act, one is liable to fine ranging from 50 to 1000$. The least severe penalty, as it does not entail a criminal conviction.

With all these possible penalties, allowing a friend to use your mailing address is not such a small favor after all!

Moral Turpitude - Entering the US with a Criminal Record

2008-07-25T12:29:00.015-04:00

There seems to be a lot of confusion with respect to entering the United States with a criminal record.

The basic tenant, as the late Charlton Heston would have put it, is ; 'Thou shall not enter the United States of America if convicted of a crime involving moral turpitude or drugs.'

The source of confusion originates from what is considered to be a crime of moral turpitude. This term used in American law is loosely defined and refers to conduct that is ' considered contrary to community standards of justice, honesty and good morals.'

As an indication, the US Department of State Foreign affairs offers a comprehensive list of offences deemed to be of moral turpitude on their website at the following link

Morals eh? Would this include a petty offence that is only punishable by summary conviction, such as the offence of soliciting a prostitute ?

You Bet! This offence is considered a crime involving moral turpitude, and as such, would render inadmissibility pursuant to section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (US).

There is an exception however! If the ONLY conviction in the persons criminal record is a petty offence or misdemeanor (punishable by a maximum of one year of imprisonment under US Law) and the person was sentenced to 6 months of detention or less, he is not inadmissible on this basis.

In the given example of the crime of solicitation, the maximum sentence in the US is of 1 year imprisonment. Therefore a person sentenced to a fine and a probation would be admissible as opposed to a person sentenced to more than 6 months of imprisonment. In addition, given that this exception is only applicable to ONE conviction, a person convicted of this offence twice may be inadmissible.

What about Drunk Driving, even politicians get those ?

If there are no aggravating factors( ex: serious accident, injuries etc.) there should be no problem, as impaired driving is not considered a crime of moral turpitude. To be prudent, it is always best to have a copy of the conviction on hand to show to the customs officer.

The important thing to remember is that you can never be certain of what the customs officer is seeing on his screen when questioning you on the subject of previous convictions and arrests. One must therefore answer these questions as accurately as possible in order to avoid being flagged, declared permanently ineligible or even detained with the U.S. Department of Homeland Security.

BON VOYAGE!

For additional information on this topic visit the United States Embassy in Canada website

Charter Breach... CSIS does it again!

2008-07-23T13:40:00.001-04:00

Destruction of Evidence - Charkaoui v. Canada ( 2008)

The Supreme Court of Canada ruled in Charkaoui c. Canada (2008) that the destruction of operational notes was a breach of CSIS's duty to retain and disclose information.

Section 7 of the Charter which guarantees the right to a full answered defence also encompasses the crown's duty to disclose.

Disclosure extended to the operational notes and was not limited to the summaries prepared by the CSIS agents.

Despite the violation, the court decided that a stay of proceedings would be an inappropriate remedy in this case.

Yet another violation of the charter by CSIS. Only a few months prior to this decision, the Supreme Court of Canada in Canada v. Khadr (2008) recognized that CSIS's participation in the Guantanamo process violated Canada's international human rights obligations.

Repatriate Omar Khadr

2008-07-22T15:21:00.005-04:00

On July 27^th, 2002, Omar Khadr, a 15 year old Canadian citizen was taken into custody by US forces. He remains to this day detained in a legal black hole where his human rights are continuously violated.

Deemed a global leader with respect to upholding international law regarding children, Canada’s handling of Omar Khadr’s case is incongruent with the reputation it holds. In the recent case of Canada v. Khadr (2008) SCC 28 , the Supreme Court of Canada recognized that the Canadian authorities participation in the Guantanamo Bay process violated Canada’s international human rights obligations.

The aforementioned process was subject to scrutiny in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006). The United States Supreme Court was unanimous in holding that, in the circumstances, the deviations from the Geneva Conventions were sufficiently significant to deprive the military commissions of the status of “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples”, as required by Common Article 3 of the Geneva Conventions.

Despite the conclusions of the United States Supreme Court, Guantanamo remains in operation and Omar Khadr’s fate in Limbo.

Consequently, the Canadian government must make up for its past failures and ensure that Omar Khadr be tried before a regular criminal court where these judicial guarantees may be provided.

The Government of Canada should therefore secure the release of Omar Khadr from Guantanamo Bay and repatriate him to Canada where he may be tried as a juvenile before a Canadian criminal court.